Combating stigma and fighting HIV-nondisclosure laws

An ongoing battle in education

Lisa Power, head of policy for the Terrance Higgins Trust, and Sean Strub, the founder of POZ magazine. Credit: Noreen Fagan

Thirty years ago, an HIV diagnosis was a death sentence. Today that fear has diminished, only to be replaced by new fears. People living with HIV are concerned about increasing stigma from society, a sense of isolation and the possibility of prosecution for trying to live intimate, sexual lives.

The fear of prosecution is increasingly invading Canadian lives. Mixed with that is the aura of stigma surrounding HIV nondisclosure, which may not only change behaviour but also affect the motivation to get tested and subsequent treatment for the disease.

As people are inundated with sensationalized media reports, the threat of new charges continues to grow.

The nondisclosure law is confusing and contentious and has made an impact on people living with HIV.

In July 2011, at the Ottawa Courthouse, four attempted murder charges were dropped in the preliminary hearings against a 30-year-old man accused of not disclosing his HIV status to his partners.

The accused still faces charges on three counts of aggravated sexual assault, one count of attempted aggravated sexual assault, three counts of sexual assault, two counts of administering a noxious substance and two counts of attempting to administer a noxious substance.

The accused has spent 14 months in custody and is expected to stand trial in early 2012.

Also pending in the courts is the Mabior case. On Feb 7, 2012, the Supreme Court of Canada will decide if Mabior — who is HIV-positive, was on antiretrovirals and sometimes used condoms — put his sex partners at “significant risk.”

Under this cloud of legal uncertainty, the AIDS Committee of Ottawa (ACO) has quietly been educating the public on issues surrounding the criminalization of HIV, its impact on the wider community and the need for prosecutorial guidelines.

Kathleen Cummings is the executive director of ACO.

“It [the criminalization of HIV] is one of the main issues going on in our community, and when I say community I mean not just in Ottawa, I mean nationally and internationally,” she says. “I think it is having a definite effect on the lives of people living with HIV. It has created a lot of fear and confusion, but I also think it could have, potentially, a huge impact on our prevention efforts, too.”

ACO has endorsed the United Nations statement on HIV/AIDS: before someone can be charged, transmission has to have taken place and harm must be done.

“We know that is not the law in Canada, but as an agency that is what we feel would be more fair,” she says.

Cummings expresses the sentiment felt by many HIV/ AIDS advocates that the law in Canada is confusing.

“There is no clear message about what the actual law means,” she says. “In the US and Canada it is more about nondisclosure, so there is the question of what is significant risk.”

The fact that the courts have not clearly defined what counts as a “significant risk” has led to the wide use of the criminal law in HIV-nondisclosure cases. Simply put, HIV-positive people don’t know what the law expects of them: some people have been charged and convicted when they practised safer sex or had only oral sex; others have been found not guilty.

It is widely understood in public health, HIV/AIDS prevention and advocacy agencies that the lack of clarity and the ensuing confusion has led to two results: fear, and an increase in stigma about one’s HIV status.

“The idea that people may not go and get tested has a huge impact on prevention efforts,” says Cummings.

Although there is no hard evidence to support the theory, Cummings says that there is an increasing amount of anecdotal evidence.

“People presenting that are low risk — who have participated in low-risk behaviours — are going for regular tests to the doctors. People who have been participating in high-risk behaviours are going for the anonymous testing,” says Cummings.

There is speculation that people going for anonymous testing will not seek out clinical services for fear that they will have to disclose their status and therefore put themselves at risk of criminal prosecution.

Cummings also says that forcing HIV-positive people to disclose their status is another way of reinforcing stigma.

“The reality is that stigma is one of the biggest issues around HIV today. Thanks to medication, we are no longer experiencing members of our community dying weekly and daily at times, which is great, but stigma is still a huge, huge part of the HIV epidemic in Canada,” she says.

ACO is committed to trying to support people who are living with HIV, to give them the information they need to protect themselves from being falsely accused, to support people in getting tested and to continue to try to get evidence-based prosecutorial guidelines in place.

The guidelines would help police and Crown prosecutors handle HIV-related criminal complaints fairly and in a non-discriminatory manner.

Cummings says that ACO will continue in its effort to educate and work with the community.

“We are going to keep strategizing and working together, and we welcome support and input from any community members that want to get engaged and work with us on this,” says Cummings.

Information on the subject has been sent out in newsletters, campaign postcards, informal discussions, HIV/AIDS workshops and forums.

The last forum, on June 30, featured panellists Sean Strub, the founder of POZ magazine and senior advisor to the Positive Justice Project at the Center of HIV Law and Policy in the United States; Lisa Power, head of policy for the Terrance Higgins Trust (THT) in the United Kingdom; and Richard Elliot, executive director of the Canadian HIV/AIDS Legal Network.

All three spoke on the different approaches countries have taken on the issue of criminalization: both Canada and the US have laws based on nondisclosure, while in England and Wales, the legal system and the police service work under prosecutorial guidelines.

In England and Wales there are two possible offences: reckless transmission and intentional transmission, but a person must have actually transmitted HIV to be successfully prosecuted.

In Canada the outcome of the Mabior case will help determine the direction Canada will take in defining what is “significant risk” and how the law should handle future HIV-nondisclosure cases.

“What I would really like to see is that we move to what has happened in England and Wales,” says Cummings. “I would love to see that happen with the law in Canada. I don’t know if it will, but I can hope. But at the very least some sort of solid clarity around what is significant risk — based on science, not on morals.”